NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1092-15T2
SOPHIA ARCE-PINTO,
f/k/a SOPHIA A. ARCE,
Plaintiff-Appellant,
v.
MULHARE ALCIUS,
Defendant-Respondent.
Argued March 1, 2017 – Decided March 27, 2017
Before Judges Fuentes, Carroll and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Essex
County, Docket No. FD-07-0355-10.
Adamo Ferreira argued the cause for appellant
(DeGrado Halkovich, LLC, attorneys; Mr.
Ferreira and Felicia Corsaro, on the brief).
Wilfredo Benitez argued the cause for
respondent.
PER CURIAM
Plaintiff Sophia Arce-Pinto appeals from a series of orders
entered by the Family Part with respect to the parties' ongoing
custody and parenting time dispute. Specifically, plaintiff
appeals from the (1) May 15, 2015 order that, among other things,
denied her motion to modify the parties' existing parenting time
schedule, denied her request to submit the dispute to mediation,
and awarded defendant Mulhare Alcius additional parenting time;
(2) August 19, 2015 order denying plaintiff's motion to recuse the
trial judge and vacate the court's prior orders; (3) September 28,
2015 order clarifying and enforcing the May 15, 2015 order; and
(4) October 26, 2015 order awarding counsel fees to defendant.1
After reviewing the record before the Family Part, we agree
with plaintiff's argument that the trial court erred in failing
to refer the parties' dispute to mediation as required under Rule
5:8-1. Consequently, we reverse the May 15, September 28, and
October 26, 2015 orders and remand for further proceedings
consistent with this opinion. We affirm as to the August 19, 2015
order denying recusal.
I.
The parties, who were never married, have a daughter who was
born in November 2005. On November 13, 2012, the parties entered
into a consent order pursuant to which they agreed to continue
sharing joint legal custody and plaintiff was to remain the parent
1 The October 26, 2015 order also denied plaintiff's motion to
stay the prior orders. That issue was rendered moot by our
December 28, 2015 order granting a stay pending this appeal.
2 A-1092-15T2
of primary residence. Defendant was granted parenting time on
alternate weekends from Friday to Monday, and on Wednesdays from
5:30 p.m. until 8:00 p.m.
Plaintiff subsequently moved for reconsideration and to
enforce litigant's rights with respect to the November 13, 2012
order, while defendant cross-moved for attorney's fees. The
parties submitted their disputes to mediation, which resulted in
a comprehensive sixteen-page Shared Parenting Plan Agreement
(SPPA). The SPPA provided that the parties would have joint legal
and physical custody of the child, and, in addition to setting a
"regular parenting schedule," it also made detailed provision for
parenting time during the child's summer vacation, on holidays,
and during special events. The SPPA was incorporated into a
consent order entered on June 12, 2013.
On July 24, 2014, plaintiff moved to modify the SPPA.
Specifically, plaintiff sought to amend the alternate weekend
parenting time from Friday to Sunday night; to eliminate the
Wednesday evening parenting time; and to amend the summer parenting
time schedule. In her supporting certification, plaintiff averred
that defendant failed to consistently exercise his Wednesday
evening parenting time; that defendant's wife or other family
members transported the child to school on Monday following
defendant's alternate weekend parenting time; and that defendant
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enrolled the child in summer camp during the summer vacation
period. Plaintiff also alleged that defendant refused to mediate
these disputes, as suggested by the terms of the SPPA.
Defendant opposed plaintiff's motion and filed a counterclaim
seeking sole custody. The court heard oral argument on the
opposing applications on October 10, 2014. Plaintiff, through
counsel, argued that defendant was failing to abide by the terms
of the SPPA, was enrolling the child in activities that encroached
on plaintiff's parenting time, and that the parties were unable
to communicate on these issues. Plaintiff's counsel reiterated
that a request had been made to return to mediation, which
defendant had refused unless plaintiff paid the entire mediator's
fee. Defendant, also represented by counsel, sought equal
parenting time as an alternative to his request for sole custody.
Defendant alleged that it was plaintiff who was breaching the
SPPA, and that she failed to include him in the decision-making
process or inform him of special events, such as the child's recent
First Communion ceremony.
The Family Part judge found the parties' failure to
communicate with each other was "egregious." In her October 10,
2014 order, the judge did not address the mediation issue. Rather,
she continued the prior orders in effect pending further
4 A-1092-15T2
proceedings, and ordered both parties and the child to submit to
a psychological evaluation within sixty days.
The psychologist, Mark J. Friedman, Ph.D., met three times
with each of the parties and once with the child. In his April
6, 2015 report, Dr. Friedman noted that both parties "appear to
be doing an admirable job in co-raising [the child, who] enjoys
her time with both parents and appears to be a happy, well-
mannered, engaging child." Accordingly, Dr. Friedman opined that
the SPPA was still "reasonable and appropriate. It is the
implementation of that detailed schedule that seems to be the
issue at times. Both parents still feel they are not adequately
consulted on important issues regarding their child." Referring
to the SPPA, Dr. Friedman concluded "if it's not broken, no need
to fix it . . . [b]ut the parents must do a far better job of
communicating with one another for the betterment of [the child's]
future welfare."
The court conferenced the matter with counsel on May 4, 2015.
Absent an agreement, counsel were directed to provide additional
submissions prior to a plenary hearing that was scheduled for May
15, 2015. On May 12, 2015, defendant's counsel submitted a
memorandum to the court documenting defendant's concerns about the
child's academic progress, followed by a supplemental memo
forwarding additional documentation the next day. Plaintiff's
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counsel submitted a legal memorandum on May 14, 2014, contending
that: (1) no plenary hearing was necessary because defendant failed
to establish changed circumstances or a genuine and substantial
factual dispute regarding the welfare of the child; (2) the case
was required to be referred to mediation pursuant to Rules 5:8-1
and 1:40-5; and (3) the court should have set a discovery schedule
prior to scheduling a plenary hearing.
When the parties appeared on May 15, 2015, the court heard
oral argument of counsel but no testimony was taken. The judge
denied defendant's application for sole custody, but modified the
SPPA to grant defendant overnight parenting time every Wednesday,
and each Saturday from 9:00 a.m. until 6:00 p.m. when he did not
have weekend visitation. The judge denied plaintiff's motion to
modify the SPPA. Additionally, even though at the outset of the
argument the judge noted, "First, [plaintiff's counsel] has every
right to get a mediation," the court's memorializing order
nonetheless "denied [plaintiff's] counsel['s] application for
mediation as counsel had ample time to make a petition for same."
A dispute soon arose over the parties' varying
interpretations of the May 15, 2015 order. Plaintiff contended
that the modification granting defendant additional parenting time
applied only to the regular parenting schedule and not the summer
vacation schedule. In support of her position, plaintiff relied
6 A-1092-15T2
on the judge's remark at the conclusion of her decision that
"[v]acation time stays the same." Defendant in turn contended
that the order amended the SPPA throughout the entire year. Both
counsel addressed letters to the court requesting clarification
of the order. On June 5, 2015, the judge's law clerk sent an
email to counsel advising:
On May 15, 2015, this [c]ourt ordered
that all terms of the [SPPA] shall remain in
full force and effect EXCEPT that [defendant]
is entitled to additional parenting time
including overnight on Wednesdays and
parenting time every other Saturday from 9:00
a.m. [until] 6:00 p.m. in addition to what has
already been established by the [SPPA]. The
[c]ourt did not change the summer or special
holiday schedules. Those shall remain the
same as originally agreed to by the parties
under the [SPPA].
Hope this can clear up any confusions
with respect to the order. If you have any
additional questions please feel free to
contact chambers. Thank you.2
Plaintiff thereafter moved to recuse the judge on the basis
that she had previously served as a member of the Essex County
Board of Chosen Freeholders approximately thirteen years earlier
when defendant's attorney was appointed deputy counsel to the
Board. Plaintiff also sought to vacate the orders previously
2 We know of no authority permitting law clerks to make definitive
declarations or clarifications about what a trial judge meant in
an order. We take this opportunity to caution trial judges against
the use of such procedure.
7 A-1092-15T2
entered by the judge. The judge denied the motion on August 19,
2015, setting forth her reasons in a comprehensive eight-page
written opinion. However, the judge reassigned the case to another
judge "out of an abundance of caution."
Defendant subsequently moved to enforce the May 15, 2015
order. On September 28, 2015, a second Family Part judge heard
argument on the motion, including the parties' conflicting
interpretations of the May 15, 2015 order. The judge noted that
the first judge had entered the order "[a]fter an extensive plenary
hearing." He concluded "that the intent and the implementation
of the May 15th order was intended to be every Wednesday, along
with every Saturday . . . when [] defendant did not have the child
for the full weekend." The judge entered a memorializing order
finding plaintiff in violation of litigant's rights by refusing
to implement the provisions of the May 15, 2015 order during the
summer vacation period. In addition to ordering make-up parenting
time, the judge agreed to entertain an award of counsel fees upon
submission of an updated affidavit of services from defendant's
attorney. On October 26, 2015, the judge issued an order and a
statement of reasons awarding defendant a $2755 counsel fee.
II.
On appeal, plaintiff renews the arguments she presented to
the trial court. With respect to the May 15, 2015 and August 19,
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2015 orders, she argues that: (1) there was no showing of changed
circumstances affecting the welfare of the child to justify
modifying the SPPA; (2) the hearing conducted was not a plenary
hearing because it lacked formality and deprived plaintiff of a
meaningful opportunity to conduct discovery and examine witnesses;
(3) the court failed to order mediation as mandated by Rule 5:8-
1; and (4) the first judge should have recused herself, rescinded
her May 15, 2015 order, and awarded her attorney's fees. Regarding
the September 28, 2015 and October 26, 2015 orders, plaintiff
contends that the second judge erred in clarifying and enforcing
the May 15, 2015 order and awarding defendant counsel fees.
We begin our analysis by reiterating that we provide
substantial deference to the Family Part's findings of fact because
of that court's special expertise in family matters. Cesare v.
Cesare, 154 N.J. 394, 411-12 (1998). Thus, "[a] reviewing court
should uphold the factual findings undergirding the trial court's
decision if they are supported by adequate, substantial and
credible evidence on the record." MacKinnon v. MacKinnon, 191
N.J. 240, 253-54 (2007) (quoting N.J. Div. of Youth & Family Servs.
v. M.M., 189 N.J. 261, 279 (2007))(alteration in original). While
no special deference is accorded to the judge's legal conclusions,
Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995),
we "'should not disturb the factual findings and legal conclusions
9 A-1092-15T2
of the trial judge unless . . . convinced that they are so
manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the
interests of justice' or when we determine the court has palpably
abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47
(App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412). We
"reverse only to 'ensure that there is not a denial of justice'
because the family court's 'conclusions are [] "clearly mistaken"
or "wide of the mark."'" Id. at 48 (quoting N.J. Div. of Youth &
Family Servs. v. E.P., 196 N.J. 88, 104 (2008)) (alteration in
original).
Generally, when courts are confronted with disputes
concerning custody or parenting time, the court's primary concern
is the best interests of the child. See Sacharow v. Sacharow, 177
N.J. 62, 80 (2003); Wilke v. Culp, 196 N.J. Super. 487, 497 (App.
Div. 1984), certif. denied, 99 N.J. 243 (1985). The court must
consider "what will 'protect the safety, happiness, physical,
mental and moral welfare of the child.'" Mastropole v. Mastropole,
181 N.J. Super. 130, 136 (App. Div. 1981) (quoting Beck v. Beck,
86 N.J. 480, 497 (1981)). "A judgment, whether reached by consent
or adjudication, embodies a best interests determination." Todd
v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993).
Consequently, when a parent seeks to modify a parenting time
10 A-1092-15T2
schedule, that parent "must bear the threshold burden of showing
changed circumstances which would affect the welfare of the
[child]." Ibid.
In the present case, we agree with plaintiff's argument that
the first judge erred in failing to order the parties to mediation
as mandated by Rule 5:8-1. We recently ruled:
With respect to mediation, Rule 5:8-1
makes clear that "[i]n family actions in which
the court finds that either the custody of
children or parenting time issues, or both,
are a genuine and substantial issue, the court
shall refer the case to mediation in
accordance with the provisions of [Rule] 1:40-
5." (Emphasis added). In order to provide a
reasonable and meaningful opportunity for
mediation to succeed, the trial court should
confer with counsel and thereafter enter a
case management order: (1) identifying the
issues the mediator should address to resolve
the parties' custodial dispute; and (2)
setting an initial two-month deadline to
report back as required under Rule 5:8-1, with
the proviso that this time can be extended "on
good cause shown." Ibid. Although the
parties are not required to present expert
opinion testimony during the mediation
process, they are free to agree otherwise.
Ibid. In short, the court must give the
parties and the mediator all rights conferred
under Rule 5:8-1.
The case management order must also
include a clear and definitive date for ending
the mediation process. Ibid. The trial judge
is ultimately responsible for the progress of
any litigation. The judge thus remains in
control of the case at all times, and must
guard against either party abusing the
mediation process by treating it as [a] tactic
11 A-1092-15T2
to delay, frustrate, or otherwise undermine
the custodial or parenting time rights of the
adverse party.
[D.A. v. R.C., 438 N.J. Super. 431, 451-52
(App. Div. 2014).]
Here, at a minimum, genuine and substantial parenting time
issues clearly existed between the parties. Both were dissatisfied
with the existing SPPA and sought to modify it. The expert
psychologist, Dr. Friedman, identified issues regarding the
implementation of the SPPA and the parties' need for improved
communication for the betterment of the child's future welfare.
The first judge similarly found the parties' failure to communicate
about parenting issues was "egregious." Accordingly, the matter
should have been referred to mediation pursuant to Rule 5:8-1.
In arriving at this conclusion, we observe that while the
parties' relationship appears acrimonious, mediation did prove
successful in resolving their past differences. As we noted in
D.A., supra, "a professionally trained mediator is capable of
creating an environment that fosters compromise over
intransigence, enabling these litigants to subordinate their
emotionally-driven personal interests to the higher needs of their
[daughter] to have both of [her] parents involved in [her] life."
Id. at 452.
12 A-1092-15T2
Moreover, we are unable to conclude on this record that
plaintiff somehow waived this mandatory mediation process.
Plaintiff's counsel represented at the outset that he had proposed
that the parties return to mediation, and he reiterated this
position in the legal memorandum he submitted prior to the "plenary
hearing." It is also difficult to reconcile the first judge's
statement upon commencement of the May 15, 2015 hearing that
plaintiff "has every right to . . . mediation," with her subsequent
rejection of the mediation application as untimely. Consequently,
we reverse the May 15, 2015 order, and the September 28, 2015
order that purported to clarify and enforce it, and remand for the
trial court to refer this matter to mediation as required under
Rule 5:8-1.
If mediation fails to resolve the custody and parenting time
issues raised by the parties, the trial court shall consider all
relevant evidence anew. The court shall accelerate the hearing,
after allowing appropriate time for limited discovery and any
additional submissions by the parties. We defer to the motion
judge's determination as to whether to schedule a plenary hearing.
Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012). "A
plenary hearing is required when the submissions show there is a
genuine and substantial factual dispute regarding the welfare of
the child[], and the trial judge determines that a plenary hearing
13 A-1092-15T2
is necessary to resolve the factual dispute." Hand v. Hand, 391
N.J. Super. 102, 105 (App. Div. 2007); see also Lepis v. Lepis,
83 N.J. 139, 159 (1980) (holding "a party must clearly demonstrate
the existence of a genuine issue as to a material fact before a
hearing is necessary," and noting that "[w]ithout such a standard,
courts would be obligated to hold hearings on every modification
application") (citation omitted).
Parenthetically, we identify a separate and independent basis
to reverse the September 28, 2015 and October 26, 2015 orders.
Unlike the second judge, we find it far from clear that the
decision awarding defendant increased parenting time was intended
to apply during the summer vacation period as well as the regular
parenting schedule. Rather, the first judge's remarks at the May
15, 2015 hearing, and her law clerk's June 5, 2015 email purporting
to clarify the judge's ruling, appear to suggest otherwise. We
are thus unable to conclude that plaintiff's interpretation of the
May 15, 2015 order was erroneous or that she violated it in bad
faith. Consequently, we reverse the September 28, 2015 order
finding plaintiff in violation of litigant's rights, and the
October 26, 2015 award of counsel fees in favor of defendant.
Lastly, we conclude that reversal of the first judge's August
19, 2015 order is unwarranted, as the judge's former position did
not give rise to any conflict, real or apparent, and she did not
14 A-1092-15T2
show the requisite hostility or bias against plaintiff. Suffice
it to say, we find no abuse of discretion in the judge's decision
to deny recusal. See Panitch v. Panitch, 339 N.J. Super. 63, 67,
71 (App. Div. 2001) (stating recusal rests in the sound discretion
of the trial court, and will be reversed only upon an abuse of
that discretion); see also Jadlowski v. Owens-Corning Fiberglas
Corp., 283 N.J. Super. 199, 221 (App. Div. 1995) (citing Magill
v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990)) ("The trial
judge is in as good a position as any to evaluate a claim that an
action has the appearance of impropriety."), certif. denied, 143
N.J. 326 (1996). We do not discern any facts cited by plaintiff
that would lead "a reasonable, fully informed person [to] have
doubts about the judge's impartiality[.]" DeNike v. Cupo, 196
N.J. 502, 517 (2008). In any event, the issue appears to have
been rendered moot by the judge's determination to reassign the
case to another judge, and our reversal of the May 15, 2015 order
on other grounds.
Affirmed in part and reversed and remanded in part for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
15 A-1092-15T2